Vang v. Berryhill

Filing 21

MEMORANDUM AND ORDER that Plaintiff's Motion for an Order Reversing the Commissioner's Decision (Filing No. 15) is denied. Defendant's Motion to Affirm the Commissioner's Decision (Filing No. 19) is granted. The Commissioner's decision is affirmed pursuant to sentence four of 42 U.S.C. § 405(g). Judgment will be entered by separate document. Ordered by Senior Judge Richard G. Kopf. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GREGORY D. VANG,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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4:17CV3039

MEMORANDUM
AND ORDER

Plaintiff brings this action under Title II of the Social Security Act (“Act”),
which provides for judicial review of “final decisions” of the Commissioner of the
Social Security Administration. 42 U.S.C. § 405(g) (Westlaw 2017).
I. NATURE OF ACTION & PRIOR PROCEEDINGS
A. Procedural Background
Plaintiff filed an application for disability benefits on October 9, 2015. (Filing
No. 12-5 at CM/ECF pp. 188-189.) The claim was denied initially (Filing No. 12-4
at CM/ECF pp. 113-116) and on reconsideration (Filing No. 12-4 at CM/ECF pp. 118121). On October 19, 2016, following a hearing, an administrative law judge (“ALJ”)
found that Plaintiff was not under a “disability” as defined in the Act. (Filing No. 12-2
at CM/ECF pp. 9-27.) On January 19, 2017, the Appeals Council of the Social
Security Administration denied Plaintiff’s request for review. (Filing No. 12-2 at
CM/ECF pp. 1-4). Thus, the decision of the ALJ stands as the final decision of the
Commissioner. Sims v. Apfel, 530 U.S. 103, 107 (2000) (“if . . . the Council denies the
request for review, the ALJ’s opinion becomes the final decision”).

B. Factual Background
The Defendant agrees with Plaintiff’s statement of facts, which are set forth
verbatim below:
In his application for disability benefits, plaintiff stated that he was
born on May 4, 1965,1 and that he became unable to work on July 8,
2014. (Filing No. 12-5, at CM/ECF p. 188). The plaintiff testified that he
last worked in maintenance at a Wal-Mart distribution center. (Filing No.
12-2, at CM/ECF p. 36-37). He has performed no substantial and gainful
work activity since the date of his alleged onset of disability, July 8,
2014. (Filing No. 12-2, at CM/ECF p. 12).
At his hearing the plaintiff stated that he completed high school
for his level of education. (Filing No. 12-2, at CM/ECF p. 36).
Plaintiff’s has past relevant work consisted of working in loss
prevention and store maintenance. (Filing No. 12-2, at CM/ECF p.
36-37).
The plaintiff alleged disability due to degenerative disc disease of
the thoracic and lumbar spine with residuals of surgery; carpal tunnel
syndrome (“CTS”); and obesity. (Filing No. 12-2, at CM/ECF p. 14).
The plaintiff has a history of lumbar disc surgery prior to his
alleged onset date of disability. (Filing No. 12-2, at CM/ECF p. 40).
Then, in May of 2012, the plaintiff injured his thoracic spine while doing
heavy lifting on the job. (Filing No. 12-5, at CM/ECF p. 195). An MRI
performed in June of 2012 revealed right mid thoracic disc herniation
impinging on the spinal cord. However, no abnormal signal within the
spinal cord was observed. (Filing No. 13-1, at CM/ECF p. 440). Further,
despite this, the plaintiff continued to work into the month of July. At
that time, the plaintiff reported that he stopped working due to radiating

1

Making the plaintiff 49 years old as of the date that his disability began or a
younger individual. 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 201.00(h)(1).
2

pain, numbness, and weakness in his legs. (Filing No. 13-1, at CM/ECF
p. 432). An MRI study of the lumbar spine was also performed at that
time, which revealed degenerative changes at L4-5, with post-operative
changes causing some narrowing of the left lateral recess and left neural
foramen. (Filing No. 13-1, at CM/ECF p. 439). The plaintiff was
examined in March of 2015. There, he was noted to have undergone a
previous fusions [sic] and discectomy of the thoracic spine in March of
2013. During this examination, in March of 2015, an updated MRI of the
thoracic spine was obtained. The study revealed no significant canal or
foraminal changes through T4. At T4-5, canal stenosis was found to be
mild and no significant canal or foraminal changes could be seen through
the remainder of the thoracic spine. At the time of this examination, the
plaintiff was noted to have a BMI of over 42, which is consistent and
supportive of his diagnosis of obesity. Further upon exam, despite his
obesity, he was noted to have a normal cardiovascular examination; he
was fully alert and oriented; and his coordination was normal. (Filing
No. 13-5, at CM/ECF p. 775-778).
The plaintiff was also referred to Lincoln Orthopedic Physical
Therapy for a functional capacity evaluation by licensed occupational
therapist Mr. Bruce Bednar, OTR/L, CHT, CWCE, in July of 2014.
There, Mr. Bednar determined that the plaintiff was best suited for light
work, and that his strength and endurance would continue to improve “at
some point in the future.” The plaintiff was noted to have restrictions in
squatting, bending, and kneeling to an occasional basis. He was also
limited to crouching and stooping on an “infrequent basis;” and he was
limited to occasional overhead reaching with frequent forward reaching.
Mr. Bednar also opined that the plaintiff would be able to sit or stand for
1-2 hours at a time and may require short rest breaks to relieve pain.
(Filing No. 13-4, at CM/ECF p. 558-559).
Upon examination by Mr. Bednar in July of 2014, the plaintiff
demonstrated full grip strength bilaterally. He was noted to be able to
walk for six minutes with a normal pace and gait pattern. He was able to
kneel for three full minutes. He was able to complete 10 squats. He
demonstrated a full range of motion with reaching both forward and
overhead, and he passed all balancing tests with his left and right lower
extremities. Moreover, he was noted to be able to push and pull with a
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sustained force of 30 pounds and a maximum force of 40 pounds, he was
observed carrying a tote weighing 20 pounds on an occasional basis, and
he did not demonstrate any neurological weakness in his bilateral lower
extremities; however, he did report some diminished sensation extending
along the right rib cage from his thoracic spine around the right side to
his front mid section. (Filing No. 13-4, at CM/ECF p. 560-565).
It should be noted that Mr. Bednar was of the opinion that the
plaintiff could not engage in frequent lifting or carrying. (Filing No.
13-4, at CM/ECF p. 566).
During an examination from December of 2015, the plaintiff was
found to be obese, but respiratory and cardiovascular exams were
normal. Further, a sensory exam was normal; his muscle bulk and tone
were normal; he was found to have normal muscle strength in all areas
tested; and his coordination was normal. (Filing No. 13-7, at CM/ECF
p. 884-886). During a separate exam from December of 2015, the
plaintiff was noted to have a normal gait and normal posture. Further, at
that time, an exam of the lumbar spine revealed normal strength and
tone, no laxity or crepitus, no spasms, and no known fractures or
deformities. Moreover, straight leg raise testing was negative. (Filing
No. 13-7, at CM/ECF p. 881-883).
The plaintiff has been clinically diagnosed with bilateral CTS, and
these diagnoses have been confirmed thought [sic] EMG and NCV
studies. Said studies revealed mild right median neuropathy at the wrist
and moderately severe left median neuropathy at the wrist. However, no
evidence of right or left ulnar neuropathy was noted, and as mentioned,
the plaintiff was able to demonstrate full grip strength during testing in
June of 2016. (Filing No. 13-7, at CM/ECF p. 916).
The plaintiff presented for a follow-up examination in April of
2016, where he continued to report significant back pain. At that time,
he demonstrated positive straight leg raise testing on the left with
evidence of L5 type radiculopathy, and he was noted to have range of
motion deficits in his lumbar spine. However, an examination of his
thoracic spine was “relatively unremarkable.” (Filing No. 13-7, at
CM/ECF p. 939-940).
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The State agency examiners’ opinions were that the plaintiff
would be able to lift 10 pounds frequently, and 20 pounds occasionally;
that he could stand, walk and sit for 6 hours out of an 8 hour work day;
that he could never climb ladders, ropes or scaffolds, but could
occasionally climb ramps or stairs, stoop, crouch, kneel and crawl.
(Filing No. 12-3, at CM/ECF p. 89-98 and 100-111).
The plaintiff testified that he cannot be on his feet for enough time
to perform his past work because of back spasms in his lower back and
upper back and with the cramping that he has in his hands. (Filing No.
12-2, at CM/ECF p. 40). He testified that the pain level he experiences
based on a 0 to 10 scale with 10 being the worst is 5-6 even though he
avoids activity such as lifting, pulling, pushing and bending which
aggravates his pain, and that even with these precautions, it will rise to
a level of 8 or 9. He further noted that recently he had climbed three
flights of stairs which caused the pain level to go to 8 or 9 and that the
pain level caused him to lie down for two hours before the pain level
started to subside. It was his testimony that these rises in pain level to 8
or 9 were occurring about twice a week. (Filing No. 12-2, at CM/ECF p.
41-42).
The plaintiff also testified that he has an upper back pain of 3 or
4 on the 10 point scale in the rib cage area. He noted that the pain in that
area can be triggered to a level of 8 or 9 by lifting or carrying something
and his pain level is increased. When these rises in pain occur, they can
require two to three hours to subside after lying down. He reported these
problems occurring every three to six weeks. (Filing No. 12-2, at
CM/ECF p. 46-48).
The plaintiff also described the problem caused by his carpal
tunnel syndrome (“CTS”). He explained that it causes cramping and pain
with use of his hands. As a recent example he described that just
spending about 3 minutes the day before skinning a fish, he experienced
severe cramping and a pain level of between 7 and 8. He also had a
similar experience the day before the fish skinning when he was picking
up a bunch of nuts and bolts that he had dropped to the ground. (Filing
No. 12-2, at CM/ECF p. 49-51).

5

Similarly, the plaintiff testified as to the difficulty he has standing
in one place like the kitchen counter or kitchen sink. After about 10
minutes he needs to go to his recliner because of pain in his back. (Filing
No. 12-2, at CM/ECF p. 51). The back problem also limits his ability to
sit in a straight back chair like a kitchen chair or an office chair. It was
his testimony that such activity was limited by the pain to an hour to an
hour and 15 or 20 minutes when it would become necessary to move
around. He noted that eventually he would need to lie down in order to
get the needed relief. (Filing No. 12-2, at CM/ECF p. 52-53).
The plaintiff described a typical day as starting around 8:30 or
9:00 in the morning with him having a cup of coffee with his wife prior
to her leaving to go to her shop where she runs a taxidermy business.
(Filing No. 12-2, at CM/ECF p. 54). He testified that he might go down
to his wife’s shop for an hour or two and visit with her or answer the
phone for her until he becomes too uncomfortable at which time he
returns home and goes to his recliner for relief. He said that the time in
the recliner is a rotation between sitting in the upright and reclined
positions. (Filing No. 12-2, at CM/ECF p. 55-56).
The plaintiff testified that he is not able to perform domestic
chores throughout the day because of his pain. He gets things out of the
refrigerator for lunch and he works with his wife’s 20 year old daughter
to prepare the evening meal. (Filing No. 12-2, at CM/ECF p. 56-57).
After dinner he will watch recorded TV shows with his wife while sitting
in his recliner in either the upright or reclined position until retiring for
bed at 10:00. He stated that he has trouble getting to sleep which might
take until 1:00 or 2:00 to doze off even though he takes Ambien and
Tizanidine to help him achieve his sleep. He stated that on average he
only gets around three hours of sleep overnight and does not wake
refreshed in the morning. (Filing No. 12-2, at CM/ECF p. 58-59).
The plaintiff testified that he is no longer able to pursue hunting,
fishing and trapping which he avidly participated in. He even mentioned
that the fish he was skinning was a bass caught by a neighbor boy.
(Filing No. 12-2, at CM/ECF p. 59).
It was the testimony of the plaintiff that between 8:00 in the
6

morning and 5:00 in the afternoon he is only able to stand in one place
for a total of an hour; that he can walk around for about two hours and
that he spends about four hours in his recliner split about equally
between upright and reclined. He said that roughly four to five hours is
spent reclining during that time. (Filing No. 12-2, at CM/ECF p. 60-61).
(Filing No. 18 at CM/ECF pp. 2-8 (hyperlinks added).)
C. The ALJ’s Opinion
Following the five-step sequential analysis for determining whether an
individual is “disabled” under the Social Security Act, 20 C.F.R. § 404.1520, the ALJ
concluded in relevant part:
(1)

Plaintiff has not engaged in substantial gainful activity since July 8, 2014.

(2) Plaintiff’s severe impairments of degenerative disc disease of the thoracic
and lumbar spine with residuals of surgery, carpal tunnel syndrome, and obesity did
not meet or equal the severity of one of the listed impairments under the Act such that
disability could be established on the medical facts alone.
(3) Plaintiff has the residual functional capacity (“RFC”) to perform light
work as defined in 20 CFR § 404.1567(b), except Plaintiff is able to kneel, crouch,
and crawl only occasionally; is able to stoop and twist the trunk about three times each
hour (twisting being defined as rotating so that the plane of the shoulder is at an angle
of at least 45 degrees in relation to the neutral position); is able to handle and finger
bilaterally on a frequent basis; and is able to reach overhead occasionally. Further, if
Plaintiff is required to sit or stand for at least one hour, then he requires the freedom
to stretch and flex for two minutes before returning to work. In addition, if Plaintiff
is required to walk more than 600 yards at a time, he requires the freedom to take a
break to stretch or flex for two minutes before resuming work.

7

(4)

Plaintiff is unable to perform his past relevant work as a store detective.

(5) Considering Plaintiff’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that Plaintiff can perform, such as an information clerk, routing clerk, and
mail clerk, dictating a finding of “not disabled.”
(Filing No. 12-2 at CM/ECF pp. 15-22.)
II. ISSUES ON APPEAL
Plaintiff asserts that the ALJ erred in (1) “failing to incorporate all of the
plaintiff’s documented limitations from the functional capacity evaluation performed
by Bruce Bednar at Lincoln Orthopedic Physical Therapy which caused him to be
found to be not disabled”; and (2) failing to properly apply Polaski v. Heckler, 739
F.2d 1320 (8th Cir. 1984), in “determining the credibility of the plaintiff’s subjective
allegations of his physical and mental condition as to his limitations, restrictions and
work-like activity.” (Filing No. 18 at CM/ECF pp. 10-11.)
III. STANDARD OF REVIEW
The court may reverse the Commissioner’s findings only if they are not
supported by substantial evidence or result from an error of law. See Gann v.
Berryhill, 864 F.3d 947, 950 (8th Cir. 2017); Byes v. Astrue, 687 F.3d 913, 915 (8th
Cir. 2012); 42 U.S.C. §405(g) (“The findings of the Commissioner of Social Security
as to any fact, if supported by substantial evidence, shall be conclusive . . . .”).
Substantial evidence is less than a preponderance, but enough that a reasonable mind
would find it adequate to support the Commissioner’s conclusion. In determining
whether evidence is substantial, the court considers evidence that both supports and
detracts from the Commissioner’s decision. If substantial evidence supports the
Commissioner’s conclusion, the court may not reverse merely because substantial
8

evidence also supports the contrary outcome and even if the court would have reached
a different conclusion. Gann, 864 F.3d at 950.
A court should disturb the ALJ’s decision only if it falls outside the available
“zone of choice,” and a decision is not outside that zone of choice simply because the
court may have reached a different conclusion had the court been the fact-finder in the
first instance. Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011); see McNamara
v. Astrue, 590 F.3d 607, 610 (8th Cir. 2010) (if substantial evidence supports the
Commissioner’s decision, the court “may not reverse, even if inconsistent conclusions
may be drawn from the evidence, and even if [the court] may have reached a different
outcome”). The Eighth Circuit has repeatedly held that a court should “defer heavily
to the findings and conclusions of the Social Security Administration.” Hurd v.
Astrue, 621 F.3d 734, 738 (8th Cir. 2010); Howard v. Massanari, 255 F.3d 577, 581
(8th Cir. 2001).
IV. DISCUSSION
A. Bednar’s Functional Capacity Evaluation
The ALJ explicitly gave “some weight” to the opinion of occupational therapist
Bruce Bednar that Plaintiff was capable of light work2; his strength and endurance
would continually improve; he was restricted to occasional squatting, bending, and
kneeling, infrequent crouching and stooping, occasional overhead reaching, and
frequent forward reaching; and Plaintiff could sit or stand for 1-2 hours at a time, but
may require short rest breaks to relieve pain. The ALJ noted that limiting Plaintiff to

2

The applicable regulations define light work as “lifting no more than 20
pounds at a time with frequent lifting or carrying of objects weighing up to 10
pounds.” SSR 83-10.

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light work was consistent with Plaintiff’s MRI studies, his prior surgeries, and
Bednar’s examination of Plaintiff. (Filing No. 13-3 at CM/ECF pp. 23-31.)
Plaintiff asserts that the ALJ erred by failing to incorporate all of his
documented limitations from Bednar’s evaluation. Specifically, Plaintiff argues that
the ALJ’s finding that Plaintiff can perform light work is inconsistent with Bednar’s
Functional Capacity Evaluation, which, according to Plaintiff, states that Plaintiff
“would be unable to ‘frequently’ lift or carry any amount, much less 10 pounds as
required by the regulations to perform light work.” (Filing No. 18 at CM/ECF p. 14.)
Bednar’s evaluation does contain a chart indicating that Plaintiff can frequently
carry “0 lb” (Filing No. 13-3 at CM/ECF p. 31) and his “safe weight” for frequent
lifting above and below his waist is “0 lbs” (Filing No. 13-3 at CM/ECF p. 29).
Notably, the ALJ did not mention or rely on Bednar’s lifting/carrying restrictions,
perhaps because Bednar’s ultimate conclusion that “the client demonstrates ability to
perform work in the Light physical demand level on a full time basis” (Filing No. 13-3
at CM/ECF p. 24) would necessarily mean that Plaintiff could lift or carry up to 10
pounds on a frequent basis under SSR 83-10, and Bednar’s lifting/carrying restrictions
conflicted with that.
However, even if Bednar’s functional capacity evaluation contains an internal
inconsistency regarding lifting and carrying restrictions, the ALJ was bound to
consider the evidence as a whole, and substantial evidence in the record as a whole
supports the ALJ’s conclusion that Plaintiff can engage in light work—that is, he can
frequently lift and carry objects weighing up to 10 pounds. This evidence includes:
• The opinion of reviewing physician Robert M. Roth, M.D. (to which the ALJ
accorded “some weight”), who stated that Plaintiff could meet the demands of
light work, including frequently lifting and carrying up to 10 pounds. (Filing
No. 12-3 at CM/ECF p. 8.) Juszczyk v. Astrue, 542 F.3d 626, 633 (8th Cir.
2008) (in determining RFC, ALJ was entitled to consider evidence as a whole
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and determine that plaintiff’s alleged mental impairments were of the severity
described by psychologist, rather than by plaintiff himself); Guilliams v.
Barnhart, 393 F.3d 798, 803 (8th Cir. 2005) (ALJ must assess claimant’s RFC
based on all relevant evidence); Baker v. Colvin, 620 F. App’x 550, 552 (8th
Cir. 2015) (unpublished) (ALJ properly gave little weight to treating
physician’s assistant’s RFC opinion when other physicians’ medical opinions
contradicted RFC opinion); Lynch v. Astrue, 687 F. Supp. 2d 841, 865 (N.D.
Iowa 2010) (“the ALJ is not required to view only the results of the FCE, but
may also look at all of the relevant evidence”); 20 C.F.R. § 404.1545(a)(1)
(“We will assess your residual functional capacity based on all the relevant
evidence in your case record.”); SSR 96-6P, 1996 WL 374180 (July 2, 1996)
(state agency medical consultants are experts in social security disability
programs, and ALJs are required to consider their findings of fact about the
nature and severity of an individual’s impairment as opinions of nonexamining
physicians; while ALJ is not bound by such findings, they may not ignore
them).
• In March 2015, Plaintiff was referred to Alan R. Brewer, M.D., of Great
Plains Pain Management for an examination and MRI of his thoracic spine. Dr.
Brewer noted Plaintiff’s statement that his back pain was exacerbated by lifting
over 20 pounds; that Plaintiff had a prior discectomy and fusion at the T6/T7
level; and that Plaintiff’s increasing pain in his brachial lumbar area was
“consistent with referred pain from the deconditioning of his abdominal
muscles.” The MRI revealed no significant canal or foraminal changes through
T4. At T4-5, canal stenosis was mild, and no significant canal or foraminal
changes were seen throughout the remainder of the thoracic spine. (Filing No.
13-5 at CM/ECF pp. 56-59.)
• In December 2015, Jason M. Citta, M.D., reported that Plaintiff exhibited
normal coordination, muscle bulk and tone, and full muscle strength (Filing No.
13-6 at CM/ECF p. 39). Another December 2015 examination of Plaintiff by
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Kristina M. Downing, APRN, showed normal gait and posture and no
neurological abnormalities. The exam showed Plaintiff’s neck had a full range
of motion; his lower back had normal strength and tone; he exhibited normal
posture and gait; and he had no muscle spasms. Plaintiff had normal back
flexion and extension and no pain with straight leg raising. Plaintiff’s gait had
a normal step length, walking speed, mechanics, and velocity. Plaintiff’s hips
had a normal range of motion with no tenderness or pain (Filing No. 13-6 at
CM/ECF pp. 41-42).
• In an April 2016 examination in which Plaintiff complained of increased
back and left leg pain, Douglas Beard, M.D., stated that Plaintiff’s prior
diagnostic studies could not explain Plaintiff’s allegedly worsening symptoms.
While Plaintiff showed a positive straight leg raise on the left, his thoracic spine
was relatively unremarkable. Plaintiff had a limited range of motion in his
lumbar spine, but normal flexion, abduction, and external rotation (Filing No.
13-7 at CM/ECF pp. 22-26).
Because this court must “defer heavily to the findings and conclusions” of the
Social Security Administration, Hurd v. Astrue, 621 F.3d at 738, and because the
above-described evidence supports the ALJ’s conclusion that Plaintiff has the residual
functional capacity to perform light work—meaning he can frequently lift and carry
10 pounds—this court may not reverse the ALJ’s decision, even if “inconsistent
conclusions may be drawn from the evidence.” McNamara, 590 F.3d at 610.
Accordingly, I am not persuaded by Plaintiff’s argument that the ALJ erred by failing
to incorporate the lifting/carrying restriction from Bednar’s functional capacity
evaluation.
B. Plaintiff’s Allegations of Pain & Activity Level
Plaintiff argues that the ALJ’s finding that Plaintiff is not disabled “was not
based on substantial evidence because it was not based on an RFC which incorporated
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all of the problems and limitations identified by the plaintiff”—specifically,
“plaintiff’s relevant complaints of pain.” (Filing No. 18 at CM/ECF p. 17.)
Social Security Ruling (“SSR”) 16-3p3 states that in “considering the intensity,
persistence, and limiting effects of an individual’s symptoms,” the ALJ4 must consider
“the objective medical evidence; an individual’s statements about the intensity,
persistence, and limiting effects of symptoms; statements and other information
provided by medical sources and other persons; and any other relevant evidence in the
individual’s case record.” SSR 16-3p, 2016 WL 1119029, Titles II & XVI: Evaluation
of Symptoms in Disability Claims (S.S.A. Mar. 16, 2016). With regard to an
individual’s statements about their symptoms, such as pain, the ALJ must “evaluate
whether the statements are consistent with objective medical evidence and the other
evidence.” Id. If a claimant’s statements are inconsistent with objective medical
evidence, the ALJ “will determine that the individual’s symptoms are less likely to
reduce his or her capacities to perform work-related activities or abilities to function
independently, appropriately, and effectively . . . .” Id.
SSR 16-3p discusses the ALJ’s obligation to explain “which of an individual’s
symptoms we found consistent or inconsistent with the evidence in his or her record”
and “how our evaluation of the individual’s symptoms led to our conclusions.” The

3

SSR 16-3p became effective on March 28, 2016, and it supersedes SSR 96-7p.
With this change, the SSA “eliminat[ed] the use of the term ‘credibility’ from our
sub-regulatory policy, as our regulations do not use this term. In doing so, we clarify
that subjective symptom evaluation is not an examination of an individual’s character.
Instead, we will more closely follow our regulatory language regarding symptom
evaluation.” SSR 16-3p, 2016 WL 1119029, Titles II & XVI: Evaluation of
Symptoms in Disability Claims (S.S.A. Mar. 16, 2016).
4

The relevant regulations and Social Security Rulings repeatedly refer to “we”
and “us”—terms that refer to the Social Security Administration or the state agency
making the disability determination. 20 C.F.R. § 404.1502(j). In the above discussion,
I have substituted the word “ALJ” for “we” and “us.”
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SSR directs the ALJ to “consider the consistency of the individual’s own statements,”
including those made during other disability-claim proceedings, in the objective
medical evidence, and in other evidence in the record. The ALJ’s determination in this
regard “must contain specific reasons for the weight given to the individual’s
symptoms, be consistent with and supported by the evidence, and be clearly
articulated so the individual and any subsequent reviewer can assess how the
adjudicator evaluated the individual’s symptoms.”
Finally, SSR 16-3p states that ALJs are not to “assess an individual’s overall
character or truthfulness in the manner typically used during an adversarial court
litigation. . . . Rather, [the ALJ] will focus on whether the evidence establishes a
medically determinable impairment that could reasonably be expected to produce the
individual’s symptoms and given the [ALJ’s] evaluation of the individual’s
symptoms, whether the intensity and persistence of the symptoms limit the
individual’s ability to perform work-related activities.”
While SSR 16-3p eliminates the “credibility finding” requirement, it
incorporates 20 C.F.R. §§ 404.1529 and 416.929, which address how the SSA
evaluates symptoms, including pain. These regulations provide that the ALJ will
consider factors relevant to the claimant’s alleged pain, including daily activities; the
location, duration, frequency, and intensity of pain; precipitating and aggravating
factors; and medication and other treatment the claimant has used to alleviate
pain—the familiar Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984), factors.
Here, the ALJ discussed the regulatory factors for evaluating Plaintiff’s claims
regarding the intensity, persistence, and limiting effects of his pain and gave specific
reasons for concluding that Plaintiff’s symptoms did not prohibit Plaintiff from
performing light work. Specifically, the ALJ found that the clinical and objective
findings in the record, as well as Plaintiff’s activity level, were inconsistent with
Plaintiff’s alleged pain being completely disabling, citing the following evidence:

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• Plaintiff testified that he “tends to his own personal hygiene needs, plays a
musical instrument as a hobby, helps care for the family dog, and helps run
errands and answer phone calls for his wife in the operation of her taxidermy
business . . . [and] admits he is able to operate a motor vehicle independently,
he watches television daily, and is able to manage his own finances.” (Filing
No. 12-2 at CM/ECF p. 16.)
• Plaintiff’s testimony regarding his activities conflicted with that of his
spouse. Plaintiff’s spouse reported that Plaintiff did not run errands for her
taxidermy business, but Plaintiff said that he “goes to the [taxidermy] shop,
‘hangs out’ with [his wife], answers phones, and runs errands for her
regularly.” (Filing No. 12-2 at CM/ECF p. 19.)
• Several “factors” tended to “detract from his testimony as to how much he
actually participates in this business.”
For example, he indicated in a stipulated worker’s compensation
settlement that he ‘assists his wife in a taxidermy business.’
Finally, he admitted that he recently climbed three flights of stairs,
but used a freight elevator to come back down to what he called
‘our shop,’ before quickly changing his testimony to ‘where
Marla’s business is.’ Moreover, this level of stair climbing is
inconsistent with the general thrust of his testimony that he lies
down four to five hours per day and spends a large portion of his
day in a recliner.
(Filing No. 12-2 at CM/ECF p. 18.)
• Plaintiff testified that he has not gone hunting since 2011, but his wife stated
that one of Plaintiff’s hobbies is hunting, and Plaintiff reported that his dog is
trained for hunting. (Filing No. 12-2 at CM/ECF p. 18.)
• Despite Plaintiff’s reports of hand cramping and weakness, “there were very
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few mentions of hand cramping in the record. He reported hand cramps in May
of 2016 during one appointment, but did not mention them in the several
appointments thereafter in the following months. Further, there is no indication
that he has ever actually been treated [f]or left neuropathy of the wrist.” (Filing
No. 12-2 at CM/ECF p. 18.)
• None of Plaintiff’s treating physicians submitted a medical source statement
supporting Plaintiff’s allegations of total disability, and Plaintiff “has been
noted to have no side effects from medication on multiple occasions.” (Filing
No. 12-2 at CM/ECF p. 18.) Further, as discussed in detail above regarding
Plaintiff’s Functional Capacity Evaluation, the examinations and diagnostic
studies contained in Plaintiff’s administrative record support Plaintiff’s
performance of light work, not total disability.
Because the ALJ’s evaluation of Plaintiff’s subjective complaints of pain was
based on the entire record; reflects consideration of the appropriate factors; explains
reasons for finding Plaintiff’s alleged level of pain to be inconsistent with other
evidence in the record; and is supported by substantial evidence, I find no merit in
Plaintiff’s argument that the ALJ did not incorporate all of Plaintiff’s pain allegations
in making his RFC determination.
V. CONCLUSION
For the reasons explained above, I find the ALJ’s decision is supported by
substantial evidence on the record as a whole and is not contrary to law.
Accordingly,
IT IS ORDERED:
1.

Plaintiff’s Motion for an Order Reversing the Commissioner’s Decision
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(Filing No. 15) is denied.
2.
Defendant’s Motion to Affirm the Commissioner’s Decision (Filing No.
19) is granted.
3.
The Commissioner’s decision is affirmed pursuant to sentence four of 42
U.S.C. § 405(g).
4.

Judgment will be entered by separate document.

DATED this 7th day of December, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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